Our Secret Constitution: How Lincoln Redefined American Democracy
George P. Fletcher
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Americans hate and distrust their government. At the same time, Americans love and trust their government. These contradictory attitudes are resolved by Fletcher's novel interpretation of constitutional history. He argues that we have two constitutions--still living side by side--one that caters to freedom and fear, the other that satisfied our needs for security and social justice.
The first constitution came into force in 1789. It stresses freedom, voluntary association, and republican elitism. The second constitution begins with the Gettysburg Address and emphasizes equality, organic nationhood, and popular democracy. These radical differences between our two constitutions explain our ambivalence and self-contradictory attitudes toward government.
With September 11 the second constitution--which Fletcher calls the Secret Constitution--has become ascendant. When America is under threat, the nation cultivates its solidarity. It overcomes its fear and looks to government for protection and the pursuit of social justice. Lincoln's messages of a strong government and a nation that must "long endure" have never been more relevant to American politics.
"Fletcher's argument has intriguing implications beyond the sweeping subject of this profoundly thought-provoking book."--The Denver Post
This constitutional order stands in radical contrast to the Constitution drafted in Philadelphia and amended by the Bill of Rights in 1791. It defines membership in the American nation, it brings the principle of equality to the fore, and it initiates the process of extending the franchise to virtually all adult citizens. The original Constitution did none of these things. It slighted the problems of nationality and citizenship, it sidestepped the problem of equality, and it minimized the
set of opposites: Choice versus Self-Realization. The preamble to the 1787 national charter begins with the words "We the People." The people come together, at least as imagined by their self-appointed representatives in Philadelphia, to form "a more perfect Union." The emphasis is on voluntary association. We the people choose our form of government. The key word that defines Americans in the fraternal war of the 1860s is not their voluntary association in a people but the bond that defines them
of law was not the sword of justice but rather a shield that insulated them from criticism. By upholding the practice of slavery, the 1787 Constitution should have guaranteed their sovereignty over the issue. As the drafters in Philadelphia suspended judgment about the merits of slavery for the sake of accommodation and union, the South believed that they had the right to decide for themselves whether to follow the worldwide trend and abolish slavery.7 This attitude toward the Constitution and
special regulatory scheme hardly degrades large companies and brands them as inferior. Yet, for Justice Brewer and the A Maxim of Justice 173 Supreme Court of the period, these issues represented but different layers in the same sphere of constitutional wax. Today the Court expresses this structural unity by ranking some forms of discrimination as worse than others, thus requiring "a higher level of scrutiny" in the process of constitutional evaluation. Discrimination based on an inherently
In 1991, Justice Blackmun coined this marvelous turn of phrase: "A government cannot be premised on the belief that all persons are created equal when it asserts that God prefers some."59 From this premise of equality among religious groups, the opinion infers that a state high A Maxim of Justice 187 school could not authorize a nonsectarian prayer at its graduation ceremonies. Doing so was a violation of the First Amendment's prohibition against the establishment of religion. In a more